Last Thursday, the Department of Education sent a letter to state K12 commissioners of education requiring that they certify compliance with Title VI by April 13, 2025, in order to continue receiving federal funds. What it says—and what it does not—has significant implications for K12 school districts across the country. 

Your “contract” with the federal government 

By accepting federal funds—including those distributed under Title I and the IDEA—states and school districts agree to comply with Title VI, which states: 

“No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.” 

State education agencies already file a set of “assurances” regarding compliance with federal nondiscrimination statutes. But this certification is different because it includes a statement that the states must comply with ED’s legal interpretation of Title VI and DEI as laid out in ED’s letter, and it provides a stern threat about noncompliance. 

According to OCR, “the use of Diversity, Equity, & Inclusion (“DEI”) programs to advantage one’s race over another” violates Title VI and “is impermissible.” It warns states and schools that “[t]he continued use of illegal DEI practices may subject the individual or entity using such practices to serious consequences.” 

What is Impermissible “Diversity, Equity, and Inclusion”?  

Although ED’s letter spells out the DEI acronym, it never defines DEI. And the certification that districts must sign leaves open the critical question of whether there are both legal and illegal DEI practices—and where the line between them is drawn (if it exists at all). Title VI, after all, does not prohibit “DEI”; it prohibits discrimination on the basis of race, national origin, and color. So the question is, when does a DEI program do that? The press release announcing the new certification points to a February 14 Dear Colleague Letter and an FAQ issued two weeks later. But these documents, too, leave questions about how ED defines DEI. 

The letter points to the Supreme Court’s decision in SFFA v. Harvard, a higher education case that examined race-based affirmative action in admissions decisions at Harvard and the University of North Carolina. In that decision, the Supreme Court stated that any race-based decision “must survive a daunting two-step examination known in our cases as ‘strict scrutiny.’” It is permitted only to further a compelling governmental interest and be “‘narrowly tailored’”—meaning ‘necessary’—to achieve that interest.” The Court held that neither university’s admissions programs met the standard, in part because “Admissions is a zero-sum game.” According to the Court, granting preference to one person based on their race automatically disfavors applicants who do not receive a preference. 

Although yesterday’s letter does not address how SFFA applies outside of university admissions, ED’s related Dear Colleague Letter interpreted SFFA to apply “more broadly” to the use of race in decisions pertaining to admissions, hiring, promotion, compensation, financial aid, scholarships, prizes, administrative support, discipline, housing, graduation ceremonies, and all other aspects of student, academic, and campus life. It also stated that making decisions based on non-racial information “as a proxy for race” was unlawful. The DCL further stated: 

“DEI programs, for example, frequently preference certain racial groups and teach students that certain racial groups bear unique moral burdens that others do not. Such programs stigmatize students who belong to particular racial groups based on crude racial stereotypes. Consequently, they deny students the ability to participate fully in the life of a school.” 

Two educator groups filed suit to challenge the Department’s DCL, and those suits remain pending. In the National Education Association and the AFT lawsuits, plaintiffs have sought a preliminary injunction but the government has not yet filed a response. Their first response is due April 11, 2025. 

ED also provided an FAQ related to the DCL. That guidance states: “Whether a policy or program violates Title VI does not depend on the use of specific terminology such as ‘diversity,’ ‘equity,’ or ‘inclusion.’ Schools may not operate policies or programs under any name that treat students differently based on race, engage in racial stereotyping, or create hostile environments for students of particular races.” Educational, cultural, and historical observances are permitted so long as they are not exclusionary.  

The guidance also recognizes that the context is important, for instance, an elementary school lesson that “shames” or assigns less value to students based on race could create a hostile environment, while a college discussion about historical hierarchies and oppression would be less likely to do so. At the same time, even in the higher education context, ED warns against silencing dissent on racially charged issues or mandating courses or orientation programs that emphasize racial stereotypes.    

Another source of guidance regarding ED’s interpretation and enforcement position are the recently launched investigations into multiple universities and one school district for race-based “DEI” programming. For example, the investigation into Ithaca City School District was triggered by its annual, student-organized “Students of Color United Summit” which OCR stated “excluded white students in violation of Title VI and its implementing regulations.” However, the school board president issued a statement noting that the event was created by students to support and affirm Students of Color, and all students, staff and educators were invited to attend. Stay tuned for a blog post discussing these investigations and emerging definitions of “illegal DEI practice.” 

How will the certification be enforced? 

Although the letter is aimed at state education agencies, school districts can expect that their states will ask them to certify that they are in compliance with OCR’s interpretation of Title VI as a necessary step in the state’s ability to make its own certification. In fact, the certification itself has a blank for the name of the state or local education agency. 

The letter lists three main ways it plans to enforce Title VI’s nondiscrimination mandate: 

• Eliminating federal funding 

• Lawsuits brought by the Department of Justice for breach of contract 

• False Claims Act (FCA) lawsuits brought by the federal government or a whistleblower 

Regarding the loss of federal funds, an extensive administrative process is mandated by law before funds can be cut off, which includes an opportunity to be heard and an appeal process. The administration, however, has not followed these procedures in recent weeks and has moved quickly to withhold funds at the outset of recent Title VI and Title IX investigations, forcing schools and universities to negotiate agreements or file lawsuits seeking injunctions. 

Regarding the False Claims Act, a court recently enjoined the federal government from using the FCA or other enforcement mechanisms to enforce an executive order requiring federal contractors and grant recipients to “certify that it does not operate any programs promoting DEI that violate any applicable Federal anti-discrimination laws.” The court found the government’s failure to define what those programs were made them unlawfully vague.  

What should schools do? 

Districts must systematically and thoroughly review their programs and activities—whether administrator, faculty, or student-led—as well as policies and procedures. Consider your local community’s expectations and the case law in your local jurisdiction as you conduct this review. Different jurisdictions interpret Title VI and the Equal Protection Clause differently. And consult counsel for guidance as you weigh the risks and benefits of any programs that might be considered to be a suspect DEI practice. T&H’s team is available to assist, so please don’t hesitate to reach out if you need support.